New Copyright Bot Raises Questions About Fair Use and Privacy

In general, Facebook has some pretty decent copyright policies. If you upload content to Facebook and it’s removed because of a bogus takedown request, you can file a counter-notice via a form on Facebook’s website. If the claimant doesn’t take action against you in a federal court in 14 days, your content is restored. That’s how it’s supposed to work, and Facebook usually does it right. Unlike some platforms, it also doesn’t ding users as “repeat offenders” based on multiple phony claims.

Internet users generally think of YouTube as a platform where, if you play by the copyright rules, the content you post is safe from takedown and, if it's taken down improperly, you have some recourse. But that's not the case, thanks to an additional barrier to lawful sharing: meet YouTube's “contractual obligations.”

YouTube has made special deals with certain rightsholders that allows them to dictate where and how their content can be used on the site.

If your video uses content controlled by these rightsholders, and they object to that use, YouTube will take your video offline and won't restore it unless you can get the rightsholder's permission. Because the takedown isn't subject to the DMCA, the rightsholder has no legal obligations to consider whether your use is a lawful fair use.

Last month, EFF and I scored a major victory for video game archiving, preservation and play – we got an exemption to the Digital Millennium Copyright Act for some archival activities related to video games.

Before I throw a bunch of shade, I want to emphasize that the exemption is a victory for the video game archiving community. Although there were flaws in what the Library of Congress granted, more legal leeway in this space is a net positive.